93 Decision Citation: BVA 93-19817
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-18 369 ) DATE
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THE ISSUE
Entitlement to an increased evaluation, including restoration of a 20
percent rating, for residuals of a gunshot wound of the back,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. K. Mulroy, Associate Counsel
INTRODUCTION
The veteran had active duty from July 1966 to October 1967. In April
1968, the Newark, New Jersey, Regional Office, originally granted the
veteran service connection for residuals of a gunshot wound to the
back, and assigned a 10 percent rating under the code for scars. In
September 1983, the Regional Office recharacterized the residuals as
lumbosacral strain, and increased the rating to 20 percent. In
November 1991, the St. Petersburg, Regional Office (hereinafter RO),
proposed to reduce the rating to the protected 10 percent. Although
the veteran objected in December 1991, the RO reduced the rating to
10 percent in March 1992. The veteran appealed to the Board of
Veterans' Appeals (hereinafter the Board). A notice of disagreement
was received in May 1992. A statement of the case was issued in June
1992. The veteran submitted a substantive appeal in July 1992. A
statement of the accredited representative was received in July 1992.
The case was received and docketed at the Board in October 1992. The
case was referred to the Disabled American Veterans and additional
argument was presented in January 1993.
REMAND
The veteran contends that his gunshot wound disability has not
improved and that a reduction is not warranted. Further, he asserts
that it has worsened and that he is entitled to an increased
evaluation. The veteran also maintains that he is entitled to service
connection for residuals of an entry gunshot wound of the left
shoulder, for a laminectomy, and for a left leg condition secondary to
his right leg and back disabilities.
In reviewing the record, this panel of the Board notes that service
connection for a lumbar laminectomy was denied by rating decision of
March 1992. We interpret the communication from the veteran's
representative in July 1992 to represent a notice of disagreement
with respect to that rating action. Moreover, the veteran has raised
the matters of service connection for a separate wound to the left
shoulder, and secondary service connection for a left lower extremity
disability and arthritis throughout his body. The United States
Court of Veterans' Appeals has cautioned against piecemeal
adjudication, and indicated that the Board must consider matters
raised prior to the issuance of a final appellate decision.
Consistent with those dictates, we believe further adjudicatory
action is called for in this case.
Accordingly, the case is being REMANDED for the following action:
The rating board should formally consider the
issues of service connection for a wound of the
left shoulder, and secondary service connection
for arthritis and a left lower extremity
disability.
When the above development has been completed, the case should again
be reviewed by the originating agency. If the decision remains
adverse to the veteran, he and his representative should be furnished
a Supplemental Statement of the Case, which includes the issue of
service connection for a laminectomy, and any other issues which have
been timely appealed, and afforded a reasonable period to respond.
Thereafter, subject to current appellate procedures, the case should
be returned to the Board for further appellate consideration, if
appropriate.
The veteran need take no action unless he is further informed. The
purpose of this REMAND is to obtain additional evidence and no
inference should be drawn regarding the final disposition of the
claim.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
IRVIN H. PEISER, M.D.
E. W. SEERY
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans'
Appeals Section, upon direction of the Chairman of the Board, to
proceed with the transaction of business without awaiting assignment
of an additional member to the Section when the Section is composed
of fewer than three Members due to absence of a Member, vacancy on
the Board or inability of the Member assigned to the Section to serve
on the panel. The
Chairman has directed that the Section proceed with the transaction
of business, including the issuance of decisions, without awaiting
the assignment of a third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of
Veterans' Appeals is appealable to the United States Court of
Veterans Appeals. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the merits
of your appeal. 38 C.F.R. § 20.1100(b) (1992).